Thursday

The "distance between parental residences" exception...


Florida Bill Establishes Presumption of Equally-Shared Parenting




But allow me to say “Oops!” Oh, I got the alimony bill right, but a couple of readers have pointed out something to me. The bill that passed also would establish a presumption of equal parenting in the Sunshine State! Those provisions are buried in half a page of the 28-page bill. Here’s how they read:
Equal time-sharing of a minor child by both parents is presumed to be in the best interests of the child unless the court finds that:

a. The safety, well-being and physical and mental and emotional health of the child would be endangered by equal time-sharing, that visitation would be presumed detrimental consistent with s. 39.0139 (3), or that supervised visitation is appropriate, if any is appropriate;

b. Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing and the court makes written findings justifying the departure from equal time-sharing;
The Myth of Mental Health Diagnosis »  Stop Using Psychology To Destroy Families And Children...Prove It!
c. A parent is incarcerated;
d. The distance between parental residences makes equal time-sharing impracticable;
e. A parent does not request at least 50% time-sharing; or
f. There is evidence of domestic violence.
The False Allegations Of Domestic Violence Epidemic »The False Allegations Of Domestic Violence Epidemic, by Tom Lemons of http://www.falsedvireports.com/ 
That’s the sum of the equal parenting part of House Bill 231 that overwhelmingly passed.

Now, each of those exceptions can block a father’s bid for equal time, but only the last one seems to have much utility in that regard. For example, (a) requires all items – endangerment to the safety, well-being, physical, mental and emotional health – to be found by the court in order to deny equal parenting time. That’s a very high bar to clear, to say the least.

The second exception is vague (what are “extenuating circumstances”?) in the extreme, plus it requires them to be established by clear and convincing evidence, plus it requires the judge to make written findings, something judges don’t usually like to do.

Incarceration is pretty cut and dried, although what will happen if the incarcerated parent is just about to get out of prison when the order is signed isn’t clear.

The distance between parental residences exception will encourage mothers to move away and, in other cases, is utterly subject to the discretion of the judge. I would argue that House Bill 231 clearly enunciates a legislative preference for equal parenting, so judges should err on the side of that arrangement. So if parents live too far apart to make, say, weekly handoffs practicable, maybe two-week residences with each parent would make more sense. If the parents are too far apart for one of them to get the child to school every day, then equal parenting, or close to it, can be achieved by having the child with one parent during all holidays and the summer. However it’s worked out in individual cases, judges should be aware of the strong legislative language supporting equal parenting and act to get as close to that as possible.

Of course the real weasel words are found in (f), the exception for domestic violence. Sadly, on its face, that exception allows a judge to order less than equal time-sharing if there is any evidence of domestic violence. The evidence doesn’t have to be good or even believable. It can be clearly rebutted. It can be presented for the sole reason of invoking exception (f). It can be the unsupported claim of one parent alone. As the bill is written, any of those types of “evidence” could be interpreted by a judge as invalidating a child’s right to equal time with each parent.

Needless to say, (f) gives me pause. But if I were a lawyer trying to get equal time for my client, and the other party claimed the domestic violence exception, I would argue that the legislature never intended to be as cavalier about that exception as I indicated in my previous paragraph. Again I’d point out that the obvious purpose of the bill is the presumption of equal parenting and to rebut that you have to produce real evidence of real violence. I’d point to the next section of the law that requires that the parent have been convicted of a first degree (or higher) misdemeanor domestic violence for a court to order non-shared parenting. It only makes sense to read the new section and the one following it together. Otherwise a judge would be effectively invalidating the second section of the law.

Will this bill pass the state Senate? We’ll see. But if it does, it’ll be a great leap forward for fathers’ rights to their children and children’s rights to their fathers.

Post by First Husbands Advocacy Group - Florida Alimony and Custody Laws Reform.

Source Reference



"Not long ago I did a piece on House Bill 231 in Florida that just passed the House of Representatives by a landslide vote of 85 – 31. If enacted into law, it would drastically alter alimony in the state, among other things putting an end to lifetime alimony. That of course was good news to ex-husbands and ex-husbands-to-be throughout the state."

 by Robert Franklin, Esq.

For the second time in a year, a governor has vetoed an equal parenting bill. Last year it was Governor Mark Dayton of Minnesota who vetoed a bill that was 13 years in the making and that had finally gotten the approval of both houses of the state legislature. In so doing, Dayton behaved as if the bill were completely new and needed further study. In fact, he was just caving in to the demands of the family law bar.
Now it's Governor Rick Scott's turn in Florida. The bill, that included both equal parenting and an overhaul of the state's antiquated alimony laws had received the overwhelming approval of the Senate, whose vote was 29-11 and the House that voted 85 - 31 in favor of the reforms. The bill passed last week and Scott could have vetoed it at any time, but he waited until literally the last day to do so. In Florida, when the legislature is in session, a governor has seven days in which to exercise his veto. If that time passes without his action, the measure becomes law.
So Scott took the entire seven days and then vetoed the bill. Why? Well, following his Wednesday veto, the legislature was only in session two more days. The original vote tallies strongly indicated the possibility of an override of his veto. That only required a two-thirds majority to do, and more members than that had already voted in favor of the bill. So it looked like a vote to override was a sure thing. But with only two days left and other things on the legislative plate, the leadership announced on Thursday that nothing would be done on the alimony and parenting bill. Scott of course had been counting on that all along.
Now, Scott wrote a letter purporting to explain his veto. Read about it here (Fox News, 5/2/13).

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Dwyane Wade’s Custody Dispute a Classic Case of Parental Alienation - Fathers & FamiliesNCFM Advisor Gordon Finley, Ph.D, Support alimony reform and equal shared parenting ncfm.org Alimony laws are archaic and need revision. This is a historic opportunity to do just that. Mr. Finley, the group Floriday Alimony Reform, and numerous other organizations and individuals have labo...


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Location: County of Miami Dade: Family Court Services, 175 Northwest 1st Avenue #1503, Miami, FL 33128, USA

10 comments:

  1. AshrrsApril 25, 2013 at 1:40 PM

    Those stipulations are more clear than the California ones that failed. Good for them!

    If it passes, next step will be getting the word out to all parents and lawyers, as even when these are passed, the courts themselves miss it!

    ReplyDelete
    Replies
    1. AnonymousJuly 12, 2013 at 11:40 PM

      Thank you for bringing this important issue to light. There are a few clarifications/additions I would like to make:
      1. Our proposed legislation did indeed pass the Florida House last session by an overwhelming majority, 83-30. Our House sponsor who is very committed to alimony reform, Rep. Ritch Workman, will be sponsoring the bill again. It was never even brought to a vote in the Senate (by last year’s sponsor, Sen. Miguel Diaz de la Portilla) where we believe it would have passed based on our headcount. This upcoming session, we will be much more selective when choosing a Senate sponsor so the same problem doesn’t re-occur.
      2. It should be noted than many people when getting divorced feel compelled to sign an agreement to pay permanent alimony. I have heard the same story from many of our members. The attorneys, who are trying to help their clients, tell them that should sign the agreement to pay permanent alimony because if they don’t, they will spend many thousands of dollars on a trial during which the judge will most likely order them to pay lifetime alimony. The attorneys are trying to save their clients money and aggravation by offering this advice. There are thousands paying permanent alimony in Florida. There are documented suicides due to the hardships imposed.
      3. When the draft of our new bill is available, any reasonable person will see that the proposed legislation is very fair, even for older homemakers. Right now, application of the law is unpredictable and often biased against the breadwinner or higher wage earner. Too many people are forced into bankruptcy while others are given a free pass at self-sufficiency.
      4. Last but not least, even if my own fiance’s alimony were to terminate tomorrow, this is a cause I would still work for because I have seen too many people suffering under the current laws and lives unnecessary lost and destroyed. I believe the laws that were created back in the “June Cleaver” days are no longer appropriate in the 21st century.

      Delete
    2. AnonymousJuly 12, 2013 at 11:45 PM

      These ancient laws have to change. Alimony needs to work like Child Support in Florida. Fixed amount, fixed period of time, nothing to argue about.

      That’s why Child Support works just fine. Nothing for the family law attorneys to fight (and bill you) for.

      Girlfriends or fiancee’s dare not ever marry a lifetime alimony payer in Florida – their income can then be counted to give the first wife a raise in her alimony!

      The current draconian laws are anti-family and oppressive to our entire state. With over a 50% divorce rate out there, our lousy laws may not impact your happy marriage, but the odds are good that you brothers, sisters, children, or close friends will one day feel the wrath of these pro-lawyer, anti-family mandates.

      And their lives will be destroyed.

      Support Alimony Reform in Florida this year!

      Delete
    3. AnonymousJuly 12, 2013 at 11:51 PM

      Thank you for bringing attention and public awareness to this issue. Permanent alimony is ridiculous, hurts all involved & takes the joy and ability of sharing the fruits of the payor’s hard work (financial resources) with children. The financial resources are depleted by the payee, who in many instances is already in a supportive, cohabitive relationship. Attorneys are making excessive amounts of money as payor’s try to right this, and outcomes are not always favorable, although they appear they should be. Public opinion on the situations I am aware of is “they had a bad attorney”, most public are not aware of the “facts” of these archaic guidelines related to alimony in Florida. Even when a “supportive relationship” is proven, recognized by the judge, alimony is still only reduced insignificantly. And the payor is ordered to pay the attorney fees for both sides….how is that justice? Paying their high priced attorney to fight to keep something they are no longer entitled to, losing, but not being responsible for the bills incurred to move forward with a fight….if they would have been responsible for their own fees, maybe they would not have added up to $12,000! We will never give up the fight until Florida laws related to alimony are updated to reflect today’s socially accepted lifestyles, push to self sufficiency and fiscal responsibility for everyone, not just alimony payor’s.

      Delete
    4. False DVI ReportsOctober 1, 2013 at 6:27 PM

      It's human nature to seek out a partner in life, and to possibly marry and have children. Unfortunately the matrimonial establishment, as we are all aware, is being methodically torn down by a demoralized society. Sadly the divorce rate is still on the rise and the foundation of marriage is being devalued and is crumbling. As adults we learn to adapt and move on when divorce attacks our lives but for children this is another story. They are the real victims of divorce and unfortunately they will suffer dearly from our selfishness and in most cases follow the same path of destruction if not worse.
      As a nation we have been granted certain civil rights by our constitution. Through the years it has been amended to better the lives of many Americans. The two most notable changes have come to Women in the 1920s and with African Americans in the 1960s. These rights were long overdue for both segments of our nation but thankfully we realized our mistakes and corrected them. This was not an easy journey for either of these crusades but through dedication and perseverance the bells of liberty rang loudly and victory was achieved.
      Unfortunately we have reached yet another fork in the road and with that comes another challenge to the American people. "We've worked hard for women's rights, but we have to watch out that the pendulum doesn't swing the other way" says Ruthie J. of the Reach FM. Ironically the pendulum has already swung far to one side and this time the male gender is being demonized by erroneous and fraudulent information. Males are being portrayed as callus, uncaring, and without emotion. We are being taught that men represent 95% of abuse in this nation against women. These and many other false statistics are being recklessly strewn throughout society and none of it is true. Yes, women are being abused by men that is a fact. striking a woman is abhorrent to the highest degree and should be dealt with appropriately but men are abused at an equal rate and they are being ignored. According to a study by the Center for Disease Control men represent 38% of domestic violence related injuries. Compound that with the fact that only 0.9% of men report abuse verses 8.5% of women and I think we have a pretty equal degree of violence between partners.
      The cornerstone of this "abuse" is VAWA the Violence Against Women Act. It was passed into law by Bill Clinton in 1994 and has been extended by every subsequent President. This law funnels Billions of dollars into discriminatory education and propaganda that violates men's civil rights. Many times DVIs or Domestic Violence Injunctions are used as a tool in divorce, child custody or just vengeance against a partner, most often against males. This is because the system of acquiring a DVI is simple and requires no evidence, witnesses or prior police reports. Just the word of an alleged victim making a claim of abuse. The repercussions of these orders are devastating and many times result in a violation, arrest and complete destruction of one's life. Even in cases when they are dismissed, a serious blemish remains on the falsely accused forever; how does that look to potential employers who almost always perform background checks prior to employment? This must be stopped and a better system of protecting all victims of domestic violence should be put in place.
      I hope to help bring awareness to gender discrimination and help provide support for men who are abused. There are programs to help women of abuse but nothing for men. My website will provide more information on the facts, my personal experiences and the stories of those who have been victims of this heinous tactic of relationship vengeance. Men and women should truly have equal rights and currently the scales are unjustly tilted. Let's work together to end domestic violence and not vilify one gender as inherently abusive. "United we stand, divided we fall" A powerful statement that we must never forget.

      Thank you,
      Tom Lemons
      Founder, www.falsedvireports.com

      Delete
    5. American Coalition for Fathers and ChildrenDecember 21, 2013 at 8:20 AM

      "CHILDREN OF DIVORCE DESERVE FULL ACCESS TO BOTH PARENTS, WHENEVER POSSIBLE."
      Personally, I can’t find anyone willing to reject that statement publicly. It’s a fundamental truth. We now have a wealth of evidence demonstrating children are better off, in most situations, when they have something near equal time with each parent. So why are shared-parenting bills are being rejected throughout the country?

      Do legislators believe mothers are more important to children than fathers? For the most part, I don’t think so. Politicians are, however, under quite a bit of pressure from some very powerful anti-shared parenting special interests. Recently, we’ve seen these opponents contribute to shared-parenting bills failing to pass in South Dakota and Minnesota.

      Some would argue disappointments like those are clear signs that shared parenting legislation will not happen anytime soon. The opposite is true. The near victories in these states and others is an enormous indication politicians are beginning to understand the vast majority of American citizens believe children of divorce deserve equal access to both parents, whenever possible.

      In fact, South Dakota’s bill lost in a 21-13 Senate vote. That’s a swing of 5 senators. If merely 5 senators felt more pressure from South Dakotans than they did from special interests, South Dakota would have a shared parenting statute. We should commend the remaining politicians in South Dakota’s Senate for doing the right thing.

      In Minnesota … well, Minnesota is a travesty. That bill passed, and on May 24, 2012 Governor Mark Dayton vetoed it. Governor Dayton claimed that both sides made “compelling arguments,” but because the “ramifications” of the legislation were “uncertain,” he decided to single-handedly overrule the will of his constituents and their representatives. Mr. Governor, unless you are ending slavery or beginning women’s suffrage, you will likely never have the benefit of “certainty” in your political career. Again, we should praise the Minnesotan politicians who voted for the bill.

      Six people. Six people stopped two states from enacting shared parenting. Six people do not indicate shared parenting is a distant hope – they indicate profoundly that it is an imminent inevitability.

      Mike Haskell is a divorced dad, shared parenting supporter and practicing family law attorney in Grand Rapids, Michigan.

      ACFC is America's Shared Parenting Organization

      "CHILDREN NEED BOTH PARENTS"

      The members of the American Coalition for Fathers and Children dedicate ourselves to the creation of a family law system and public awareness which promotes equal rights for ALL parties affected by issues of the modern family.

      ACFC is challenging the current system of American family law and policy. Through a national system of local affiliates and in alliance with other pro-family and civil liberties groups, ACFC is shifting the public debate to the real causes of family dissolution.

      Delete
  2. AnonymousMay 20, 2013 at 5:25 PM


    Children's Rights
    Our ability to enforce our children's rights is being threatened. In many cases, people are being forced to use limited financial means to prove their rights are enforceable by court (including appealing incorrect decisions) before they are allowed to proceed with the facts of their cases and obtain justice for the violations of their rights.

    The state of Florida has more than 15,000 foster children and its Department of Children and Families (DCF) has no place for many of them. By 2000, almost 20 percent of Florida's foster homes were too crowded and children were often placed for long periods in "temporary" holding facilities. The DCF was also known to rent motel rooms to serve as housing for its foster children.

    In August 2000, Children's Rights-a national organization that ensures government child welfare systems follow the law-joined local Florida advocates in a federal class-action lawsuit against DCF to improve the foster system as a whole. The district court dismissed most of the claims before the case even made it to trial, because it believed that private individuals shouldn't be able to interfere with a state system already in place. The state's system allowed Florida's dependency court to decide where children would be placed on an individual basis. Children's Rights appealed the decision, but in May 2003, the 11th Circuit Court of Appeals affirmed the district court's dismissal. The court held that each foster child could only seek relief from the harms they are suffering through separate dependency court cases-that they couldn't sue as a group. Children's Rights tried to appeal the case to the Supreme Court, but the court refused to take the case. Florida's broken system of foster care still remains unfixed.
    http://www.rollbackcampaign.org/issues/item.childrensrights7143

    ReplyDelete
  3. AnonymousJune 23, 2013 at 2:37 PM

    Great argument when defense invokes Rooker-Feldman in Federal Civil Action. Listen, Learn!

    http://coop.ca4.uscourts.gov/OAarchive/mp3/11-2131-20130322.mp3

    ReplyDelete
  4. Redress Inc.December 30, 2013 at 1:09 AM

    “Justice is a part of the human makeup. And if you deprive a person of Justice on a continuous basis, it’s really an attack (and not to get religious or anything) but it’s an attack on the human soul. We have, as societies, evolved ideas of Justice and we have done that because human nature needs Justice and it needs resolution. And if you deprive somebody of that long enough they’re going to have reactions…” ~ Juli T. Star-Alexander – Executive Director, Redress, Inc.

    Redress, Inc. 501c3 nonprofit corporation, created to combat corruption. Our purpose is to provide real assistance and solutions for citizens suffering from injustices. We operate as a formal business, with a Board of Directors guiding us. We take the following actions to seek redress: Competently organize as citizens working for the enforcement of our legal rights. Form a coalition so large and so effective that the authorities can no longer ignore us. We support and align with other civil rights groups and get our collective voices heard. Work to pass laws that benefit us and give us the means to fight against corruption, as is our legal right, and we work to repeal laws that are in violation of our legal rights. Become proactive in the election process, by screening of political candidates. As individuals, we support those who are striving to achieve excellence, and show how to remove from office those who have failed to get the job done. Make our presence known through every legal means. We monitor our courts and judges. We petition our government representatives for the assistance they are bound to provide us. We publicize our cases and demand redress. Create a flow of income that enables us to fight back in court, and to assist our members impoverished by the abuses inflicted on us. Create the means to relieve the stresses on us, as we share information and support each other. We become legal advocates for each other; we become an emotional support network for each other; we problem solve for individuals on a group basis! Educate our judges, lawyers, court personnel, law enforcement personnel and elected leaders about our rights as citizens! Actively work to eliminate incompetence, bias/prejudice, special relationships and corruption at all levels of government! Work actively with all media sources, to shed light on our efforts. It is reasonable to expect that if the authorities know we are watching and documenting, that their behaviors will improve. IT'S A HUGE TASK! Accountability will not happen overnight. But we believe that through supporting each other, we support ourselves. This results in a voice for justice and redress that cannot be ignored. Please become familiar with our web site, and feel free to call. We need each other - help us to help you! Although we are beginning operations in Nevada, we intend to extend into each state in a competent fashion. We are NOT attorneys, unless individual attorneys join us as members. We are simply people helping people. For those interested, we do not engage in the practice of law. You might be interested in this article Unauthorized Practice of Law on the Net. Call Redress, Inc. at 702.597.2982 or e-mail us at Redress@redressinc.com. WORKING TOGETHER TO ATTAIN FAIRNESS

    ReplyDelete
  5. Steve GartinDecember 30, 2013 at 5:21 AM

    PRO SE RIGHTS:
    Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."

    Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.

    Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

    Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."

    Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."

    Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.

    Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."

    Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.

    Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

    NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

    Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."

    Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

    Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."

    Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."

    ReplyDelete

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American Coalition for Fathers and Children

Means we use must be as pure as the ends we seek.

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